1 2025:CGHC:21484 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1626 of 2015 1 - Smt. Parvati Nishad W/o Late Bhagwat Nishad, Aged About 38 Years 2 - Tarun Nishad S/o Late Bhagwat Nishad, Aged About 15 Years 3 - Neturam Nishad S/o Late Bhagwat Nishad, Aged About 13 Years 4 - Ku. Neera Nishad D/o Late Bhagwat Nishad, Aged About 13 Years Appellants No. 2 to 4 are Minors, Represented Through Mother Smt. Parvati Nishad, 5 - Smt. Dukhmat W/o Abhayram Nishad, Aged About 65 Years All are R/o Village- Gurudih, Post- Lahanger, Police Station- Tumgaon, Tahsil And District- Mahasamund, Chhattisgarh ..........Claimants, ... Appellants/Claimants versus 1 - Vijayram S/o Shri Ramji Rai, Aged About 30 Years R/o Harguraud, Anand Nagar, Ranchi (Bihar) (Driver Of Container No. M.H.- 18-AA/ 0264) 2 - Barku Shukla S/o Rambhai Shukla, R/o Arvidal, Tahsil And District- Dhul (Maharashtra) (Owner Of Container No. M.H.-18- A A/0264), 3 - Cholamandalam Insurance Company Limited, Through Divisional Office, Devendra Nagar, Tiraha Jail Road, District- Raipur, Chhattisgarh (Insurer Of Container No. M.H.-18- A A/0264). ... Respondent(s) For Appellants : Shri Jameel Akhtar Lohani, Advocate. For Respondent 3 : Shri Sangeet Kumar Kushwaha, Advocate. (HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL) Judgment on Board 08/05/2025 1. This appeal has been filed by the appellants/claimants being aggrieved by the impugned award dated 20.11.2015 passed by the 1st Additional Motor Accident Claims Tribunal, Mahasamund (for short, 'the Tribunal) in Claim Case No.112/2013, whereby the Tribunal allowed the claim petition awarding Digitally signed by ANJANI KUMAR ALLENA Date: 2025.05.09 17:41:02 +0530 2 total compensation of Rs.06,03,000/- in favour of the appellants/claimants along with interest @ 6% per annum from the date of filing of claim petition till its realisation, while fastening liability upon the Non-applicants No. 1 & 2, driver and owner of the Container bearing registration No. MH-18-AA-0264 (for short, the offending vehicle). 2. Briefly stated the facts of the case are that on 19.06.2013 at about 4:30 when the deceased Bhagwat Nishad was proceeding to his home town from village Ghodari on his Rajdoot Motorcycle No.CG-04-ZR-0682 and reached to N.H.No.53, at that time, the offending vehicle, owned by Non-applicant No.2 insured by Non-applicant No.3 and was being driven by Non-applicant No.1 in a rash and negligent manner, dashed the deceased and caused the accident, as a result of such accident, he died on the spot. 3. On account of death of deceased in a vehicular accident, appellants, being legal representatives of the deceased, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short, the Act of 1988) claiming compensation to the tune of 17,66,000/- under various heads, pleading inter alia, that the deceased, who was aged 44 years at the time of accident, was earning Rs.6,000/- by working as mason. 4. Non-applicants No.1 & 2, driver and owner, remained ex parte before the Claims Tribunal and that too, they did not file any written statement, while Non-applicant No.3 insurer of it, took a defence that the driver of it, was driving the same without holding the effective and valid driving licence and that the vehicle in question was being plied by its driver in violation of terms and conditions of the policy insurance, as such, the insurer was not liable to pay any compensation. 5. 5. The Tribunal, vide impugned award dated 20.11.2015, after considering the evidence led by the parties, has held the driver/Non-applicant No.1 liable for driving the offending vehicle in a rash and negligent manner and in causing accident to the deceased; as a result of such accident, the deceased died on 3 the spot; accident was not as a result of contributory negligence and that the offending vehicle was being driven in utter violation of breach of policy conditions; assessed and awarded the total compensation along with interest, as mentioned in opening paragraph. 6. Learned counsel for the appellants submits that he does not want to challenge the quantum of compensation awarded by the Tribunal but confines his argument to the principle of pay and recover as on the date of accident, although the driver was having valid driving licence, but it was not renewed, however, the fact that on the date of accident, the offending vehicle was insured with the Non-applicant No.3 cannot be brushed aside. On this strength, he further submits that “even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident” as held by the Supreme Court in the case of National Insurance Co. Ltd. V. Swaran Singh, reported in (2004) 3 SCC 297 and it was further fortified by the Supreme Court in (2018) 9 SCC 650 (Shamanna v. Divisional Manager, Oriental Insurance Company Limited). 7. On the other hand, learned counsel appearing for respondent No.3/insurance company, while opposing the submissions made by the appellants, submits that upon due and proper appreciation of the evidence led before it, the Tribunal has rightly exonerated the insurance company from its liability as it could prove the breach of policy conditions, which warrants no interference. 8. I have heard learned counsel for the parties and perused the record of the Tribunal including the evidence adduced by the claimants minutely. 9. So far as the MV Act being beneficial and welfare legislation is concerned, in the matter of Oriental Insurance Company Limited v. Kahlon alias 4 Jasmail Singh Kahlon (deceased) through His Legal Representative Narinder Kahlon Gosakan and another reported in AIR 2021 SC 3913, the Supreme Court has observed at paragraph 9 as under :- “9. The Act is a beneficial and welfare legislation. Section 166(1)(a) of the Act provides for a statutory claim for compensation arising out of an accident by the person who has sustained the injury. Under Clause (b), compensation is payable to the owner of the property. In case of death, the legal representatives of the deceased can pursue the claim. Property, under the Act, will have a much wider connotation than the conventional definition. If the legal heirs can pursue claims in case of death, we see no reason why the legal representatives cannot pursue claims for loss of property akin to estate of the injured if he is deceased subsequently for reasons other than attributable to the accident or injuries under Clause 1(c) of Section 166. …….. 10. In the present matter, the facts that deceased died on account of vehicular accident and that on the date of accident, the offending vehicle was insured with the Non-applicant No.3/insurer are not disputed. Besides this, the learned Claims Tribunal, after appreciating the evidence and material available on record, framed three issues, out of which, the Tribunal answered the issue No.1(a) & (b) in affirmative by holding the driver/Non-applicant No.1 was liable for driving the vehicle in a rash and negligent manner on 19.06.2013 and the deceased died on account of such rash and negligent driving of Non-applicant No.1. 11. Now, as regards issue No.2 (a) with respect to breach of policy conditions, N.A.W.01 Abhishek Choubey, examined on behalf of Non-applicant No.3/insurer, has stated that the driving licence No.W.B.01383584/98 obtained from the driver/Non-applicant No.1 was got verified by the R.T.O. Ranchi as the same was issued by the Office of R.T.O. Ranchi and upon verification, it was found that its validity was upto 28.09.2011 whereas, as per the F.I.R., the accident occurred on 19.06.2013. In order to rebut the statement of N.A.W.1 Abhishek Choubey, the Non-applicants No.1 & 2 were not examined before the Tribunal nor examined any witness on their behalf. The Tribunal, on the basis of his statement, has framed the issue No.2(a) 5 and has answered in affirmative by holding that it was not proved that on the date of accident, i.e., 19.06.2013, the Non-applicant No.1/driver was not possessing valid and effective driving licence, while from perusal of insurance policy exhibited as Ex.D.1, it is clear that the driver should have a valid and effective driving licence to drive the offending vehicle. Thus, from the statement of N.A.W.1, it is proved that the driver/Non-applicant No.1 was not having valid and effective driving licence and even if it is assumed that he was valid driving licence on the date of accident, but it was not renewed. 12. Now, from perusal of Ex.D.1, it is clear that the offending vehicle was insured with the Non-applicant No.3/insurer from 17.02.2013 and its validity was upto the midnight on 16.02.2014, meaning thereby on the date of accident, the offending vehicle was insured with the insurer/Non-applicant No.3, which fact is also not disputed by the insurer. 13. As regards the payment of compensation, the Hon'ble Supreme Court in case of Shamanna and another v. Divisional Manager, Oriental Insurance Company Ltd., reported in 2018 (9) SCC 650 has held at paragraph 6 as under :- “6. As per the decision in National Insurance Company Limited vs. Swaran Singh (supra), onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, “pay and recover” can be ordered in case of third party risks. The Tribunal is required to consider “as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver'..... does not fulfill the requirements of law or not will have to be determined in each case.” 14. Considering the facts and circumstances of the case and taking support of the aforementioned ruling of the Hon'ble Supreme Court in the above referred case, I find it appropriate to direct Non-applicant No.3, respondent No.3 herein, ie., Cholamandalam Insurance Company Limited to first pay the entire amount of compensation along with interest as awarded by the 6 Tribunal and thereafter to recover the amount so deposited by it from respondents No. 1 & 2, i.e., driver and owner, in accordance with law. Ordered accordingly. 15. In the result, the appeal is allowed in part and the impugned award is modified to the extent as indicated herein above. Sd/- (Radhakishan Agrawal) JUDGE Anjani